Central Mass. has deep ties to Bulger trial

Sunday

Jun 30, 2013 at 6:00 AMJul 1, 2013 at 6:31 AM

By Lee Hammel CORRESPONDENT

It was three decades in the making, the scene earlier this month in U.S. District Court where retired state police Col. Thomas J. Foley displayed to a rapt jury everything from machine guns with the serial numbers obliterated to masks intended to hide the identity of those using the weapons.

It was the trial of James “Whitey” Bulger, the South Boston mobster charged with 19 murders and operating his own army of paid-off FBI agents, state troopers, and Boston police who protected him instead of his victims for 20 years beginning in the 1970s.

To be sure, there were honest cops in all of those agencies trying to do something about it, but they always seemed to be the coyote — whose bugs and surveillances always seemed to be foiled — to Mr. Bulger's roadrunner.

From the Lancaster Street garage to Guzzi's service station, the wise guys always seemed to know not to talk into state police hidden microphones.

Even when the jig was finally up, Mr. Bulger knew when to leave town with a blonde on his arm before he could be arrested. Not even a $2 million reward kept the Top 10 fugitive from eluding police for 16 years, until 2011.

While Boston politicos always seem to have a leg up on everyone else in the state, it was Central Massachusetts lawmen who led the effort to end the reign of Boston's most notorious mobster and put him behind bars.

That had its beginnings with the joining of forces of the state police's special services operative Foley, who was born in Worcester, with Assistant U.S. Attorney Fred M. Wyshak Jr., who settled in Northboro from Brooklyn, where he was working for the U.S. Attorney's office in New Jersey.

The state police team included Detective Lt. Stephen P. Johnson, a West Boylston native, and retired Major Thomas B. Duffy, who grew up on Grafton Hill in Worcester, as did Mr. Foley.

Add to that the resources of the U.S. Drug Enforcement Administration, which contributed budget help, the federal legal punch to make up for the less-than-enthusiastic FBI, and most importantly the investigative cunning of Special Agent Daniel M. Doherty, now head of DEA's Worcester office.

It had its beginnings with a call one night in 1990 to Mr. Foley's Worcester home from Charles F. Henderson. A Southboro resident, Mr. Henderson was the new colonel of the state police.

Mr. Henderson wanted Mr. Foley to head his old unit, Special Services, which investigates organized crime. Mr. Foley had been in special services from 1984 to 1989, and that's where Mr. Henderson got the idea Mr. Foley was the man for the job.

Mr. Foley liked the investigating, including working with the FBI and Special Agent John J. Connolly on spin-off cases from the devastating prosecution of the Mafia in Boston's North End in the 1980s. The special services team included Sgt. Ed Sullivan of Upton and Sgt. James Murray of Boylston.

But Mr. Foley chafed when his desire to go after the Winter Hill gang to which Mr. Bulger and Stephen “The Rifleman” Flemmi belonged was squelched. Finally, late in the 1980s, it was clear that someone was leaking joint FBI/state police information to the Mafia. The FBI let Mr. Foley know they believed it was a trooper named John Naimovich.

Mr. Foley said he and other state police undertook an aggressive investigation into the trooper. Mr. Foley said he found that Trooper Naimovich was not the source of the leak, but federal prosecutors took him to court anyway.

While the trooper was found not guilty, Mr. Foley said he discovered that the FBI learned that the leak to the mob had come from a secretary for Special Agent Nicholas Gianturco. Even while the FBI knew the breach came from their office “they let us proceed on Naimovich,” which ruined Trooper Naimovich's career. When asked what they were going to do to their employee, Mr. Foley said, “they told me they would handle the stenographer administratively.”

The retired colonel said in a recent interview, “There is a culture where the rules don't apply to them. While we were doing wiretaps on Naimovich for his relationship with the informant, which the FBI said was a corrupt relationship, they engaged in even more egregious actions with Bulger and Flemmi to the point they were accepting money and gifts.”

He said, “After the Naimovich case I wanted out. I was disillusioned and I went back to uniform at my own request.”

It's not a feeling that passed quickly. The other day Mr. Foley testified “I felt betrayed” by the FBI.

By the time Mr. Henderson's offer to head special services came, Mr. Foley had been promoted to corporal, he was enjoying supervising road troopers, and unlike his mob investigation days, he had regular hours and regular days off.

Mr. Henderson granted his request for time to talk it over with his wife, Marguerite, and they decided together he would decline.

After passing that decision along to Mr. Henderson, the superintendent let the corporal know that it was not a request.

But “I secured a promise I could go after Bulger and Flemmi.”

Back in special services Mr. Foley put together a team he could trust. He pulled in Troopers Duffy and Detective Lt. Johnson from the CPAC unit attached to the Worcester District Attorney's office. Trooper Duffy had worked with Special Agent Doherty in arresting Howie Winter in a major cocaine deal

Mr. Foley set to working with Mr. Wyshak.

The strategy would be to arrest bookies who were paying rent to Mr. Bulger and Mr. Flemmi. But instead of the soft treatment bookies were used to from the state courts, they were threatened with long federal sentences and forfeitures of their money. People faced with these severe penalties would suddenly see the wisdom of bargaining that down in exchange for information and testimony against people they weren't wild about paying off to begin with.

“Fortunately for us we had the young aggressive prosecutor — he's fearless,” Mr. Foley said, in reference to Mr. Wyshak.

“He's a very, very, good attorney and he's got guts to stand up for what he believes in.”

Mr. Wyshak was the architect of the case resulting in the federal racketeering conviction of former FBI Agent John J. Connolly Jr. in 2002 and even served on the Florida prosecution team that secured a 40-year sentence for Mr. Connolly for the murder of a potential witness against Mr. Bulger.

Neither the state police nor the U.S. Attorney's office were monolithic engines to end the Bulger reign anymore than the FBI was without elements trying to do something about the protection Whitey enjoyed from some law enforcement.

Mr. Foley, who was head of the state police from December 2001 to 2004, outlined that in his testimony this month and in his book, “Most Wanted: Pursuing Whitey Bulger, the Murderous Mob Chief the FBI Secretly Protected.”

One assistant U.S. attorney “who I don't think was in approval of what we were doing” informed Mr. Foley the state police could no longer use the federal deputy powers conferred on them by the U.S. Marshals, but would have to get those powers from the FBI, according to Mr. Foley. Instead the DEA deputized the state police.

The retired Worcester lawman called some others in the U.S. attorney's office “apologists” for the FBI.

In federal court this month in Boston, Mr. Wyshak was stirred to passion in defending Detective Lt. Johnson from attack by Bulger counsel J. W. Carney — who himself graduated from Worcester's Holy Cross College and lived in Worcester while in junior high school.

Mr. Carney said that a veteran state police investigator alleged that Detective Lt. Johnson interfered with an investigation into whether hitman John Martorano — a witness against Mr. Bulger — has resumed a life of crime. Mr. Wyshak especially took umbrage at Mr. Carney's charge of a “coverup” against Detective Lt. Johnson, who was responsible for tracking down and arresting Mr. Martorano in 1995 in Florida.

Mr. Wyshak said the charge, which he said was made by a disgruntled state trooper, was thoroughly investigated and found to be false.

In successfully fighting delay of the beginning of the trial, Mr. Wyshak said of the defense “they dream up fiction and then demand discovery ... like the elusive immunity agreement that doesn't exist and has never existed.”

Mr. Wyshak was referring to Mr. Bulger's claim that a now-deceased federal prosecutor had given him immunity from prosecution for crimes, even murder, in the past and in the present.

Mr. Wyshak's group, which included Mr. Doherty and the state police, secured a racketeering indictment against Bulger, Flemmi and others made public in January 1995. Mr. Foley outlined in his book a movement in the state police, once Mr. Henderson was replaced in 1996, that Mr. Foley said would have gutted the special services unit.

A lieutenant at the time, Mr. Foley said he forestalled the removal of three sergeants from the five-person organized crime unit within special services— Mr. Duffy, Detective Lt. Johnson and John Tutungian — by offering to leave himself.

That happened while there was still much work to be done: Mr. Bulger had not been charged with any murders at that point and there was a search to find him after Mr. Connolly tipped the mobster late in December 1994 that the indictment was coming. Mr. Foley said he was able to keep involved even from the distance of the uniform branch.

Mr. Foley came under fierce cross examination from Henry B. Brennan, Mr. Bulger's co-counsel, who said Mr. Foley ignored even murder allegations against others in order to pursue his client.

The former state trooper said that he notified district attorneys of the allegations of murder that hitman John Martorano made against mobsters Patrick Nee and Howie Winter but acknowledged that he did not pursue investigations against them.

But Mr. Foley denied it was because Mr. Martorano wanted to protect his friends and otherwise would not testify against those Mr. Foley wanted to prosecute, but rather because Mr. Foley had to prioritize because he had too few troopers to “take out” everyone against whom there was an allegation.

And Mr. Bulger and Mr. Connolly were priorities because of “the corruption ongoing within law enforcement at the time. It was a sordid relationship that was ongoing between Mr. Bulger, Mr. Flemmi and Mr. Connolly. It was preventing law enforcement actually from doing their investigations.”

Reflecting back on a time when John Connolly was the toast of the town, earning kudos from the director of the FBI while the investigations of other lawmen floundered, Mr. Foley said, “We did meet with failure. We did get compromised.